The fishery and other resources of the Trinity River and the lower Klamath River Basins defined the life and culture of area Indians since time immemorial. Salmon and other fish historically provided the primary dietary staple for the Indians in the area; prior to non-Indian settlement in the basin, reports indicate that local Indians consumed over two million pounds of salmon annually. The fishery resources supported commercial and subsistence economies for the Indians and also played a significant role in their religious beliefs. Fishery resources of the area have been characterized as “not much less necessary to the existence of the Indians than the atmosphere they breathed”.
A primary purpose for establishing the reservations of the Hoopa Valley and Yurok Tribes in the mid- to late-1800s — which are bisected by the Trinity and lower Klamath Rivers, respectively — “was to secure to these Indians the access and right to fish without interference from others” in order to preserve and protect their right to maintain a self-sufficient livelihood from the abundance provided by the rivers (Memorandum from Solicitor to Secretary, Fishing Rights of the Yurok and Hoopa Valley Tribes, M-36979, at 15, 18-21 (Oct. 4, 1993)).
Tribal Trust Responsibilities
The United States has a trust responsibility to protect and maintain rights reserved by, or granted to, federally recognized tribes and individual Indians, by treaties, statutes, and executive orders. These rights are sometimes further interpreted through court decisions and regulations. The trust responsibility requires that all federal agencies, including Reclamation and the Fish and Wildlife Service, take all actions reasonably necessary to protect Indian trust assets. Indian trust assets are legal interests in property held in trust by the federal government for federally recognized Indian tribes or individual Indians. “Assets” are anything owned that has monetary value. Indian trust assets can be real property, physical assets or intangible property rights, such as a lease, or a right to use something. While most Indian trust assets are located on-reservation, they can also be located off-reservation. Examples of things that can be Indian trust assets are land, minerals, hunting and fishing rights, water rights, and instream flows.
The need to restore and maintain the natural production of anadromous fish in the Trinity River mainstem originates partly from the federal government’s trust responsibility to protect the fishery resources of the region’s Indian tribes. The Trinity River Basin Fish and Wildlife Restoration Act of 1984 (Public Law 98-541) expressly acknowledges the tribal interest in the basin’s fishery resources by declaring that the measure of successful restoration of the Trinity River fishery includes the “ability of dependent tribal…fisheries” to participate fully, through enhanced in-river “harvest opportunities, in the benefits of restoration.” In addition, the 1992 Central Valley Project Improvement Act (CVPIA) specifically recognizes the federal trust responsibility in regard to the Trinity River fishery. The proposed project could potentially impact anadromous fish, non-anadromous fish, water, wildlife, vegetation, and overall health of the river. These impacts could consequently affect the cultures and economies of the tribes.
The United States’ recognition of the importance of rivers and fish to the Indian people of the Klamath/ Trinity Region is exemplified by the very shape and location of the lands first set aside for their reservations. In 1855, President Pierce established the Klamath River Reservation. The reservation (not to be confused with the Klamath Reservation in Oregon) was designated as a strip of territory commencing at the Pacific Ocean and extending one mile in width on each side of the Klamath River for a distance of approximately 20 miles. This reservation was created entirely within the aboriginal territory of the Yurok.
On August 21, 1864, the U.S. Department of Interior (DOI) issued a proclamation and instructions that established the Hoopa Valley Reservation on the Trinity River pursuant to legislation enacted by Congress that same year. The reservation is 12 miles square and bisected by 15 miles of the river (it has often been called the Square or the 12-mile Square). In 1876 President Grant issued an Executive Order formally establishing the boundaries of the Hoopa Valley Reservation, and provided that the land contained within those boundaries, “be withdrawn from public sale, and set apart in California by act of Congress approved April 8, 1864”.
In 1891, President Harrison extended the Hoopa Valley Reservation from the mouth of the Trinity River to the ocean, thereby encompassing and including the Hoopa Valley Reservation, the original Klamath River Reservation, and the connecting strip between. By that time, as a result of the Dawes Act of 1887, much of the Klamath River Reservation and extension lands (the 20-mile strip that connected the two reservations is commonly referred to as the “Connecting Strip” or “Extension”) not already claimed as allotments by resident Indians had been opened up to non-Indian settlement.
From 1891 through 1988, the Hoopa Valley Reservation was comprised of the Hoopa Valley Square, the Extension, and the original Klamath River Reservation. In 1988, Congress, under the Hoopa-Yurok Settlement Act, separated the Hoopa Valley Reservation into the present Yurok Reservation (a combination of the original Klamath River Reservation and Extension) and Hoopa Valley Reservation. The map shown above identifies the current reservation boundaries.
By first creating reservations “for Indian purposes,” the United States sought to provide the Hoopa Valley and Yurok Tribes with the opportunity to remain mostly self-sufficient, exercise their rights as sovereigns, and maintain their traditional ways of life. Implicit in this objective was an expectation that the federal government would protect the tribes and their resources (a protection that extended beyond reservation borders).
The Unites States has a trust responsibility to protect tribal trust resources. In general, this tribal trust responsibility requires that the United States protect tribal fishing and water rights, which are held in trust for the benefit of the tribes. This trust responsibility is one held by all federal agencies. Reclamation is obligated to ensure that project operations do not interfere with the Tribes’ senior water rights. Pursuant to its trust responsibility and consistent with its other legal obligations, Reclamation must also prevent activities under its control that would adversely affect Tribal fishing rights, even when those activities take place off-reservation.
Federally Reserved Indian Fishing Rights
Salmon, steelhead, sturgeon, and lamprey that spawn in the Trinity River pass through the Hoopa Valley and Yurok Reservations and are harvested in tribal fisheries. The fishing traditions of these tribes stem from practices that far pre-date the arrival of non-Indians. Accordingly, when the federal government established what are today the Hoopa Valley and Yurok Indian Reservations on the Trinity and lower Klamath Rivers, it reserved for the benefit of the Indian tribes of those reservations a right to the fish resources in the rivers running through them. The Yurok and Hoopa Valley Tribes’ federally reserved fishing rights entitle them to take fish, for ceremonial, subsistence, and commercial purposes. The United States has long recognized the rights of the Hoopa Valley and Yurok Tribes of the Klamath/Trinity River basin, to fish. The federal government, as trustee, has an affirmative obligation to manage federally reserved Indian rights for the benefit of federally recognized Indian tribes. Federally reserved Indian fishing rights are vested property rights held in trust by the United States for the benefit of the Indians. These rights have been acknowledged and confirmed by the executive, legislative, and judiciary branches of the federal government in a number of authorities.
In most cases, federally reserved Indian fishing rights cannot be supplanted by state or federal regulation. The 1993 solicitor’s opinion:
- reaffirms the historic and legal basis of the federally reserved fishing rights of the Hoopa Valley and Yurok Tribes;
- acknowledges the federal government’s cognizance of the importance of fish to these Indians at the time it first established reservations on their behalf;
- concludes that the tribes’ federally reserved fishing rights entitle them to harvest quantities of fish on their reservations sufficient to support a moderate standard of living, or 50 percent of the harvestable share of the Klamath-Trinity basin fishery, whichever is less;
- recognizes that under the current depleted condition of the fishery, a 50 percent allocation does not adequately meet the tribes’ needs; and
- argues that it was the degree of the Hoopa Valley and Yurok Tribes’ dependence on fisheries at the time their reservations were first created or expanded, and not the tribes’ specific uses of the fish, that is relevant in quantifying their federally reserved fishing rights.
Today, the reserved fishing right includes the right to harvest quantities of fish that the Indians require to maintain a moderate standard of living, unless limited by the 50 percent allocation. Specifically, the tribes have a right to harvest all trust species of Klamath and Trinity River fish for their subsistence, ceremonial, and commercial needs. Tribal harvest of these species is guided by conservation requirements outlined in carefully developed tribal harvest management plans.